O'Hair v. White, No. 79-1397

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore GODBOLD; VANCE; TJOFLAT, Circuit Judge, with whom FAY and GARZA; REAVLEY, Circuit Judge, with whom RONEY, GEE, GARZA and RANDALL
Citation675 F.2d 680
Docket NumberNo. 79-1397
Decision Date12 May 1982
PartiesMadalyn Murray O'HAIR and Society of Separationists, Inc., Plaintiffs-Appellants, v. Mark WHITE, et al., Defendants-Appellees. . *

Page 680

675 F.2d 680
Madalyn Murray O'HAIR and Society of Separationists, Inc.,
Plaintiffs-Appellants,
v.
Mark WHITE, et al., Defendants-Appellees.
No. 79-1397.
United States Court of Appeals,
Fifth Circuit. *
May 12, 1982.

Page 682

Madalyn Murray O'Hair, pro se.

Jon Murray, for plaintiffs-appellants.

Christopher Rand, Hot Springs, Ark., for Soc. of Separationists.

James McMurtry, County Atty., B. Neal Stokey, Asst. County Atty., Russell J. Bailey, Austin, Tex., for Jones, Renfro, Samuelson, Honts, Richards & Moya.

Susan O'Laughlin Bradshaw, Asst. Atty. Gen., Austin, Tex., for Mark White, et al.

Appeal from the United States District Court for the Western District of Texas.

Before GODBOLD, Chief Judge, BROWN, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN,

Page 683

VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAM D. JOHNSON, THOMAS A. CLARK, WILLIAMS, and GARWOOD **, Circuit Judges. ***

VANCE, Circuit Judge:

The appellants in this case, Madalyn Murray O'Hair and the Society of Separationists, Inc. (Society), brought suit to challenge a provision of the constitution of the State of Texas. The district court dismissed the complaint and a divided panel of this circuit affirmed. We now reverse the decision of the district court and remand for further proceedings.

I.

Madalyn Murray O'Hair is an atheist. She and the Society of Separationists are vocal and active proponents of complete separation of church and state. In October 1978 O'Hair and the Society brought suit in the United States District Court for the Western District of Texas seeking declaratory, injunctive, and compensatory relief for a complex of alleged constitutional violations. 1 The gravamen of the complaint was that a provision that had been in the constitution of the State of Texas since 1875 2 violated the civil rights of O'Hair and of the Society's membership both by its existence and by its application. The challenged constitutional section provides:

No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall anyone be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being.

Tex.Const., art. 1, § 4 (emphasis added). Despite the rather confusing nature of the complaint, we have been able to identify several specific claims for which appellants seek relief.

Appellants seek a declaration that article 1, section 4 of the Texas constitution (section 4) establishes a state religion in derogation of the federal Constitution's first amendment establishment clause, 3 fourteenth amendment equal protection clause, 4

Page 684

and article IV guarantee of a republican form of government. 5 They seek to enjoin numerous state activities that comply with the requirements of section 4 on the ground that those activities operate to discriminate against atheists. They seek an injunction against the payment of any salaries to state officials, judges, or jurors because those parties were allegedly selected from a pool from which atheists were illegally excluded. They also seek to prevent the perpetuation of the alleged exclusion of atheists from public office or jury service by enjoining any election or jury selection in Texas until section 4 is declared unconstitutional. 6

As the basis for their standing to sue on these claims, appellants allege they have been harmed by both the existence and the operation of section 4. Primarily, appellants assert that the section effectively establishes religion in Texas in violation of their rights under the first amendment. They allege direct injury as members of a religious minority who suffer officially sanctioned discrimination by being singled out and held up for public ridicule. They also claim that section 4 has caused O'Hair and several other members of the Society to be excluded from jury service and has prevented atheists from running for public office and thus from receiving a state salary.

In addition to seeking injunctions based on these claims, 7 appellants seek to halt five cases that have been initiated against them in the state court system. The first is a criminal proceeding charging O'Hair with disrupting the invocation of the Austin City Council meeting on November 3, 1977. 8 The other four are civil actions, two of which were brought solely against O'Hair and two of which were brought against

Page 685

both appellants. 9 The essence of appellants' grievance is that these proceedings violate their due process and equal protection rights because section 4 operates to exclude atheists from the judiciary and from jury service. Appellants contend that claims that relate intimately to their activism in matters concerning religion are consequently being tried by people who are biased against atheists. Standing is predicated upon the subjection of appellants to allegedly unfair trial, the threat of pecuniary loss if any of the civil cases is resolved against them, and the potential loss of O'Hair's liberty if she is convicted in the criminal case.

The district court dismissed this action, concluding that it lacked subject matter jurisdiction over the state defendants and defendant judges, and that it should abstain with respect to the other defendants. 10 A divided panel of this court affirmed, O'Hair v. Hill, 641 F.2d 307 (5th Cir. 1981), holding that: appellants had no standing to challenge section 4 under the establishment clause or to challenge state salary payments or state elections; the court should abstain from dealing with the equal protection, due process, and jury seating claims; the guarantee clause claim raised a nonjusticiable political question; and there was no proof in the record of monetary damages attributable to a violation of appellants' civil rights.

We have considered this case en banc to decide three issues. First, does O'Hair have standing to challenge the constitutionality of section 4, either on its face or as applied? Second, does the Society have standing to challenge section 4? Third, even if appellants have standing, should the federal court invoke the abstention doctrine and refrain from reaching the merits of the case?

II.

The doctrine of standing reflects concern about the power of the federal court to entertain lawsuits, as well as the proper place of the federal court in our democratic society. Thus the standing doctrine has its origins in "both constitutional limitations on federal court jurisdiction and prudential limitations on its exercise." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343 (1975) (citing Barrows v. Jackson, 346 U.S. 249, 255-56, 73 S.Ct. 1031, 1034-35, 97 L.Ed. 1586 (1953)); accord, Korioth v. Briscoe, 523 F.2d 1271, 1274 (5th Cir. 1975). Despite the relatively recent spate of Supreme Court standing decisions the doctrine remains opaque and does not admit of easy application. 11

Perhaps the most fundamental aspect of the standing doctrine is that it focuses on the particular plaintiff seeking to bring his claim before the federal court, not on the issues or merits of the case. 12

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The gist of the standing question is whether appellants have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962); accord, Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 595 (1978); Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968); Korioth v. Briscoe, 523 F.2d at 1274-75. While the court must determine whether appellants are the proper parties to challenge the constitutionality of section 4, rather than whether the issues they raise are justiciable, Flast v. Cohen, 392 U.S. at 99-100, 88 S.Ct. at 1952, the nature and source of the claims are relevant. See Warth v. Seldin, 422 U.S. at 500, 95 S.Ct. at 2205.

The constitutional dimension of the standing doctrine derives from the "case or controversy" requirement of article III of the federal Constitution and thus presents the federal court with a threshold question concerning its power to entertain the lawsuit before it. The remedial power of the court may be exercised only on behalf of a plaintiff who has suffered a threatened or actual injury from an allegedly illegal action. Warth v. Seldin, 422 U.S. at 498-99, 95 S.Ct. at 2204-05; see Regents of the University of California v. Bakke, 438 U.S. 265, 280 n.14, 98 S.Ct. 2733, 2742 n.14, 57 L.Ed.2d 750 (1978). That injury may be to rights existing solely by virtue of a statute or constitution. "Essentially, the standing question in such cases is whether the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff's position a right to judicial relief." Warth v. Seldin, 422 U.S. at 500, 95 S.Ct. at 2205.

These abstract constitutional principles, which reflect a traditional mistrust of roving judicial commissions 13 and advisory opinions, 14 have been distilled into a two-part analytical framework by the Supreme Court. Because the federal judicial power exists only to remedy injury to a complaining party, the standing doctrine in its constitutional sense requires a "distinct and palpable injury" to a plaintiff. Warth v. Seldin, 422 U.S. at 501, 95 S.Ct. at 2206; accord, Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., --- U.S. ----, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982); Pevsner v. Eastern Air Lines, Inc., 493 F.2d 916, 917 (5th Cir. 1974). The doctrine also mandates that federal court jurisdiction be invoked only when that distinct and palpable injury can fairly be...

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67 practice notes
  • McKeon v. Hastings College
    • United States
    • California Court of Appeals
    • September 22, 1986
    ...750; Valley Forge College v. Americans United (1982) 454 U.S. 464, 484, 102 S.Ct. 752, 765, 70 L.Ed.2d 700; O'Hair v. White (5th Cir.1982) 675 F.2d 680, Because it has already been determined that McKeon and Montgomery have standing, it is not strictly necessary to determine whether COFAR h......
  • Cate v. Oldham, No. 82-5392
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    • U.S. Court of Appeals — Eleventh Circuit
    • June 2, 1983
    ...97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). Accord O'Hair v. White, 675 F.2d 680, 695 (5th Cir.1982) (en banc); Gresham Park Community Organization v. Howell, 652 F.2d 1227, 1244-48 (5th Cir.1981). The malicious prosecut......
  • Center for Auto Safety v. National Highway Traffic Safety Admin., No. 85-1231
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    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 20, 1986
    ...members held diverse views concerning abortion and decision to seek an abortion is a matter of individual conscience); O'Hair v. White, 675 F.2d 680, 691-92 (5th Cir.1982) (individual had to assert his own claim that state denied him a right to a fair trial by jury). Courts have also requir......
  • Joseph A. et al. v. Ingram et al., No. 00-2136
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • January 7, 2002
    ...or to issue a declaratory judgment that would have essentially the same effect as an injunction. Cf., e.g., O'Hair v. White, 675 F.2d 680, 695 (5th Cir. 1982). Enforcement of the SEP, however, requires interference with the operations of the Children's Court in an insidious way in that the ......
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67 cases
  • McKeon v. Hastings College
    • United States
    • California Court of Appeals
    • September 22, 1986
    ...750; Valley Forge College v. Americans United (1982) 454 U.S. 464, 484, 102 S.Ct. 752, 765, 70 L.Ed.2d 700; O'Hair v. White (5th Cir.1982) 675 F.2d 680, Because it has already been determined that McKeon and Montgomery have standing, it is not strictly necessary to determine whether COFAR h......
  • Cate v. Oldham, No. 82-5392
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • June 2, 1983
    ...97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). Accord O'Hair v. White, 675 F.2d 680, 695 (5th Cir.1982) (en banc); Gresham Park Community Organization v. Howell, 652 F.2d 1227, 1244-48 (5th Cir.1981). The malicious prosecut......
  • Center for Auto Safety v. National Highway Traffic Safety Admin., No. 85-1231
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 20, 1986
    ...members held diverse views concerning abortion and decision to seek an abortion is a matter of individual conscience); O'Hair v. White, 675 F.2d 680, 691-92 (5th Cir.1982) (individual had to assert his own claim that state denied him a right to a fair trial by jury). Courts have also requir......
  • Joseph A. et al. v. Ingram et al., No. 00-2136
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • January 7, 2002
    ...or to issue a declaratory judgment that would have essentially the same effect as an injunction. Cf., e.g., O'Hair v. White, 675 F.2d 680, 695 (5th Cir. 1982). Enforcement of the SEP, however, requires interference with the operations of the Children's Court in an insidious way in that the ......
  • Request a trial to view additional results

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